Graduated Response Program: Let’s Press the Reset Button

It can't be easy to convince millions of subscribers that there's no reason to be worried when their service providers agree to collaborate with big content to tackle online infringement -- especially when those subscribers weren't given a chance to review or comment on the deal. But yesterday's announcement of the membership of the executive and advisory boards for the Center for Copyright Information, which is in charge of implementing the "graduated response" program announced last year, seemed to be an attempt to do just that. The press release stressed the free speech credentials of the executive director and the identified the various consumer advocates who have agreed to serve on the advisory board. So, all will be fine, right?

Wrong. An advisory board is just that: a group of advisors, not decisionmakers. No matter how you slice it, subscribers don't have a seat at the table now any more than they did in the earlier negotiations.

For those who haven’t been following this, here’s a brief sampling of issues subscribers might have wanted to address, if they'd been given a chance:

The alerts and other measures contemplated in the original "memorandum of understanding" released last summer are prompted by a mere allegation of infringement, based on detection mechanisms users cannot independently investigate (there is a process for independent review, but the reports won’t be public), with no way to hold content owners accountable for mistakes.

Subscribers can challenge improper notices -- but they get just 10 days to prepare their case, and can only assert certain limited defenses.

Thus far, while various reports about the system are supposed to be generated, there’s no mechanism to make those public, nor the “prevailing legal principles” the reviewers are supposed to apply.

The ISPs and the media groups announced the project last summer to much fanfare and criticism. But a funny thing happened on the way to the final rollout: Internet users joined together to tell policymakers and big media, in no uncertain terms, that we oppose backroom deals governing the Internet. That this deal applies to Internet access, among other things, makes it no less palatable; quite the contrary.

Given the importance of Internet access today, it's crazy to imagine being cut off for unproven accusations from a record label, movie studio, or book publisher. You can tell the participating ISPs today to publicly commit to not use this program to cut off users from the Internet.

And here's one more idea for the groups involved in negotiating this agreement: press reset. This collaboration has been years in the making, with the ISPs under heavy pressure from the content industries and government officials. It may be that they made the best deal they could under the circumstances, but since then the world has changed. If the ISPs decided to take this back to drawing board, we think their customers will stand with them, loudly and publicly -- but only if they also insist that their customers have voice in the process.

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